INTRODUCTION
When India became independent after its partition on religious ground, religious
minorities became very apprehensive of their identity. Therefore, one of the biggest
challenges before the framers of our Constitution was to assuage their apprehensions
and to maintain the unity of India without compromising its rich diversity. This object
was very beautifully achieved by declaring India a secular State and conferring
constitutional safeguards on its minorities, both religious and linguistic. Minority
rights were made cornerstone of the constitution of independent India. It is gratifying
to note that at a time when even international communality was grappling with the
problem of recognition of minority rights in international law in the post 2"^* World
War, the Indian constitution not only provided safeguards to minorities against
discrimination and ensured equality of treatment it also granted special rights to them
as well. All this was done mainly in the broader interest of national integration and to
inculcate confidence among the minorities so that they may be put on an equal footing
with the majority and should enjoy all opportunities to participate in the democratic
functions of the country. The framers of the Indian constitution wanted to lay down
the foundation of a strong and vibrant democratic country with secular outlook and
minority safeguards.
The constitution of India provides ample safeguards to minorities to suit their
specific needs, to fulfill their legitimate desires, and to satisfy their respective
aspirations. Articles 15, 16, and 29 enjoin that the State shall not discriminate against
any citizens on grounds of religion, race, caste, place of birth or any of them.
Similarly Articles 25 to 28 guarantee non-discrimination in the exercise of the right to
the freedom of religion. And Article 30 guarantees religious and linguistic minorities
to most important right- the right to establish and administer educational institutions
of their choice. The reason for giving fiandamental right status to the educational
rights of the minorities was to make it immune from the ordinary State interference
though the State can impose reasonable restrictions on the exercise of this right. The
present study is a modest attempt to examine the nature and scope of the Article 30 in
the light of judicial pronouncements.
Education has always been considered as a means of preserving and advancing the
culture and language of a group. Education is recognized as an important input both
for the growth of the society as well as for the individual. The education generates in
an individual a critical outlook on social and political realities and sharpness the
ability to self-examination, self-monitoring and self-criticism. The minorities have
always felt strongly about it. Furthermore the religious, ethnic and caste groups have
always been organizing educational activities for their members. They have shown
interest in educational uplift of their members. In India the need for more active
engagement of communities in the field of education was felt more during the British
period as the contribution of the then government was limited and had no mass
appeal. It is against this background emerged the tradition of establishing private
educational institutions by different communities and groups in India. The Christian
minority community took more serious interest in setting up of educational
institutions in India followed by Muslims and other minorities.
The Honorable Supreme Court of India by their judicial dictum tried to interpret
the 'letter and spirit' of the constitutional provisions regarding the minorities right to
education keeping in view the recent socio-economic jurisprudential orientation and
the new trend of unaided minority educational institution. To satisfy the new trend of
the liberalization, privatization and globalization intelligent judiciary in TMA Pai
Foundation ' case has oven-uled the view of the Unni Krishnan that is the
nationalization of education and surrendering the total process of selection to the state
but TMA Pai foundation allowed to educational institutions to generate reasonable
surplus to meet cost of expansion and augmentation of facilities which would not
amount to profiting. In the case of Islamic Academy', the ratio of Pai Foundation^
that autonomy of unaided non-minority institutions is an important facet of their right
under article 19(1) (g) and in case of minority under Article 19(l)(g) read with Article
30 of the constitution has been ignored.
The main aim of the present research work is to study and evaluate the rights of
minorities to establish and administer educational institutions in India as safeguarded
under Article 30 of the Indian constitution and approach of the judiciary while
interpreting these rights. The present study contains 5 chapters beside introductory
and concluding remarks.
Chapter 1 narrates the events that ultimately led to the adoption by the Constituent
Assembly of the rights protecting minorities. In this section an attempt is made to
investigate as to how the problem of Constitutional protection for minorities begun
and how it finished up. It narrates the all important events that ultimately led to the
adoption by the Constituent Assembly of the rights secured to minorities. The main
aim behind this is to provide a perspective for a better understanding of the real spirit
behind the adoption of the educational safeguards for the minority educational
institutions. It notes that in the beginning the problem of the protection of minorities
was basically seen as a political problem having more focus on the demand for more
political safeguards and reservation in jobs etc. But the partition of the country
completely changed the whole outlook of the Constituent Assembly and finally
minorities had to satisfy themselves with certain guarantees in the areas of education,
culture and language.
The very first question that arises in the interpretation of educational rights of
minorities is to decide the meaning of the term minority because in order to bring a
case under Article 30 of the Indian Constitution, a community lias first to establish its
character as linguistic or religious minority. Chapter 2 attempts to find out the
meaning of the very word 'minority'. It highlights the fact that how difficuh has
always been the task of defining the term "minority' which is at the core for securing
certain rights for the minorities. It points out that there is no valid and definite
yardstick to define the term 'minority' as such. The question of defining 'minority'
has always been a hotly contested issue in international and domestic levels. The
adoption of the United Nations Declaration on Minorities could be made possible
only after a decision to let the term be undefined. The Indian Constitudon uses the
term minority/minorifies in four Articles, namely. Articles 29(1), 30, 350A, and
35OB. However, what is amazing is that the Constitufion nowhere defines the term
"minority', nor does it identify the minority groups or prescribe a definite test for
identifying the same. Thus it has been left for the courts to ascertain whether a group
claiming protection is one identifiable by the characteristics of religion or language
and is numerically non-dominant. The courts now, however, come out with various
kinds of rulings, not answering the problem in a uniform way. Consequently the term
"minority' under Article 30 is sfiU not clear in its meaning and import.
In Chapter 3 an attempt is made to answer the question that when and what kind
of proof the courts require from a minority claiming to have established the institution
in question. The name of the institution, the persons involved in the establishment, the
source of fund, the subjecfion of an institufion to legal provisions, expression of the
intention, nature of the claim as to whether it was a mere clock or presentation and the
real motive was business adventure have, singly or in combination with each other,
served as positive index proving the claim of establishment. The Courts have used
such a wide discretion in placing emphasis on the factors for determining the
adequacy of the proof, they have, consequently, failed to achieve uniformity in
approach. The absence of any fixed formulae and the consequent use of wide
discretion have led the courts to arrive at conclusion which are not always rational.
Particular emphasis is placed upon Azeez Basha^ case to find out whether the
assumptions on which the Supreme Court proceeded to decide the case were
historically, factually and logically correct. Chapter 3 also seeks to know whether the
object of establishment should be to confine the benefits of the institution to the
members of the minority alone or to keep the institution open to all religious or
linguistic groups. It further explore whether the protection of Article 30 is confined to
only such minority educational institutions established with the object of preserving
language script or culture or extends to those institutions offering general secular
education.
The right of minorities to administer educational institutions has many facets like
appointment of teachers, admission of the student, choice determination of language
of the educational institution etc. The object of Chapter 4 is to put a focus on the
power of the minority to administer educational institution of their choice. An attempt
is made here to find out how far minorities are free to decide for their institutions the
medium of instruction. The Supreme Court has recognized that implicit in the Article
30 is the right of the minorities to impart instruction to their children in their own
language. It is true that the State can provide for imparting education in a particular
language but it must not stifle the language, script or culture of any section of the
citizens as such course would be trespass on the rights of those citizens who have a
distinct language or script and which they have a right to conserve through
educational institutions of their own.
The admission policy is a matter which is considered very much within the realm
of the administrafion of a minority educational institution. Chapter 4 ascertains the
scope of the right of minority institutions in matters of admission of students. The
right of minority institutions to select students could be regulated but it must be
reasonable. It should be conducive to the welfare of the minority and must not be
annihilative of their minority cliaracter. The question as to what extent the State can
interfere in the matter of admission in minority institutions has also been addressed in
this Chapter and points out that the Courts have failed to lay any definite guidelines in
this regard.
Chapter 4 also enquires about the power of the minority institutions in the matter
of selection of their staff and to further seeks to find out as to what kind of conditions
can be imposed by the State in this regard. The right to choose the principal and to
have the teaching conducted by teachers appointed by the management after an
overall assessment of their outlook and philosophy is perhaps the most important
facet of the right to administer an educational institution. The Courts have generally
observed that so long as the persons chosen have the qualifications prescribed by the
University, the choice must be left to the management.
The aim of chapter 5 is to find out as to what extent the State can exercise its
regulatory power vis-a-vis minority educational institutions. The attempt has also
been made to find out as to whether the courts have been successful in laying down
any viable method for determining the constitutionality of a regulatory measure. The
decisions on the scope and applicability of Art.30 seem to have long settled that as no
right can be absolute, Art.30, being no exception, cannot have its operation as an
unbridled license, and can have its effectiveness only within specified limits. The
judiciary has consistently recognized that reasonable restrictions can be imposed. But
only such regulations are permissible which do not restrict the right of administration
of the minority community but facilitate and ensure better and more effective exercise
of that right for the benefit of the insfitutions.
Chapter 5 also discusses about the vital issues of recognition and affiliation as
without them the right to establish and administer educational institutions would
remain an empty proposition. It seeks to find out the answer for the question whether
recognition or affiliation can be claimed as a matter of right. Further attempt is made
to know that what kind of regulatory conditions can be attached to the grant of
affiliation and recognition. Though there is no express right to recognition or
affiliation under Article 30 it cannot be denied or withheld arbitrarily by the State and
only such conditions can be attached to the affiliation or recognition that do not
render the operation of Article 30 illusory. It also examines issues relating to
disciplinary control over staff and fees regulation.
NOTES AND REFERENCES
1
TMA Pai Foundation v. State ofKarmtaka, AIR 2003 SC 355.
2
Unni Krishnan J.P. v. State ofA.P, (1993)1 SCC 645.
3
Islamic Academy v. State ofKarnata, AIR 2003 SC 3724.
4
AIR 2003 SC 355.
5
Azeez Basha v. Union of India, AIR 1968, ISCR 833.